15 January 2017

I've spent of lot of my legal career first prosecuting and then defending drug offences. Along the way I've written a few books touching on how they should be investigated, and also witnessed the defences that stand the best chance of success in leading to an acquittal.

Here are the two from my top list of drug trial defences that work. They aren't the only ones possible (that's a long list), but they're probably the most commonly successful.

Because drug offences are "victimless" crimes in the sense that it's the public at large, rather than a specific individual, who is alleged to suffer from the offences, I find certain judges may be willing to cut accused more slack in either giving them the benefit of the doubt as to guilt (which they should be getting anyway, given the very high standard required of proof beyond a reasonable doubt), or excluding all evidence against them due to rights violations committed by police during the course of investigations.

1. The drugs aren't mine. In order to convict you of drug possession or possession for the purpose of trafficking, the court needs to be convinced beyond a reasonable doubt that you had legal possession of the drugs in question. Generally, that requires "knowledge" and "control."Meaning, that if you truly didn't know the drugs were where the police found them, and such knowledge can't reasonably be inferred from the surrounding circumstances, then the court must acquit you. Likewise, even if you knew about the drugs but had no control whatsoever over the location in which they were found, the court must again acquit you.For this defence to work, your claim that the drugs don't belong to you must be reasonable, and must completely negate knowledge and control. As a result the "I was just holding them for a friend" story doesn't cut it, because you'd would still have knowledge and control ("ownership" isn't a required element here). Likewise, the defence will fail if you admit to smoking a joint as a passenger in a vehicle, since you clearly had some knowledge and control. Where it works best is if:

the drugs are found in a vehicle that isn't registered to you, and you aren't driving, or can reasonably say you just borrowed the vehicle from a friend;

the drugs are found in clothing that doesn't belong to you (but you happen to be wearing), and you can again reasonably say you just borrowed that clothing from a friend;

the drugs are found in a bag that doesn't belong to you, and you have a reasonable explanation for why you have no knowledge of its contents but are are nonetheless holding it;

the drugs are found in a residence where you have no access to the part of the residence where the drugs are located.

Anyone hoping to make "the drugs aren't mine" claim work as a defence will probably need to testify in their own defence. In order to be believed, it will help if you don't have a criminal record. I've seen the defence work best in front of juries in the international airport drug importing context, where for example an accused with no criminal record and a good background gave heartfelt honest sounding testimony that she really didn't know how something like a kilo of cocaine wound up in her luggage. 2. The Police Needed a Warrant to SearchAnother result of the "victimless" crime nature of drug offences already mentioned is that there's usually no one in whose interests it is to report them to the police. As a result authorities rely heavily on intrusive investigative techniques to discover these offences. These intrusive techniques are also needed to obtain samples of the alleged "drugs" in order to test that they aren't in fact drywall compound or icing sugar. While warrants and privacy interests existed prior to 1982, the adoption and constitutional entrenchment in 1982 of s. 8 of the Canadian Charter of Rights and Freedoms (the protection against unreasonable search and seizure), combined with s. 24 of the Charter (authorizing a court to exclude evidence obtained in violation of the Charter) placed a new emphasis of the protection of privacy interests of Canadians against state intrusion. The most fundamental way to protect privacy is to require the state to obtain a warrant from an independent judicial official prior to conducting a search. Like a lot of legal things, when a warrant is and isn't required is not black and white, but rather occupies a realm imbued with shades of grey. However, there is a clear pecking order of privacy interests where the greater the privacy, the more likely a warrant will be needed.

In any situation where drugs are discovered through a search leading to criminal charges, it's possible to argue as part of a pre-trial Charter motion that a warrant should have been obtained prior to conducting the search, and that therefore the drugs should be excluded from evidence at trial. The usual consequence of no drugs in evidence will be a collapse of the prosecution's case. The most common situations of drugs being discovered through a police search are: (1) in a vehicle; (2) on a person or in something a person is carrying; (3) in a building. A warrant might be required to search any of those places. Warrant needed for a vehicle

For vehicles, police often claim that their search is "incident to arrest" and therefore a warrant isn't needed. But the law limits the scope of such searches to only relating to the reasons for the arrest. Thus police can't conduct a traffic stop, issue a speeding ticket for which no arrest would occur, and then poke around in a vehicle on a fishing expedition looking for drugs. Police will often claim a vehicle is being searched pursuant to "consent" from the occupant. While I completely understand the psychological pressure you might be under to say "yes" to the police question "do you mind if I take a peek in your trunk," just say "no." Either the police have authority to search, or they don't. Saying "yes" won't earn you any brownie points. Warrant needed for a person

Searches of persons or the things they're carrying are also often justified under the "incident to arrest" banner. The key here to legality is there must be a valid arrest to start with. If not, a warrant may be required to search things being carried, like a gym bag. Usually one wouldn't obtain a warrant to search a person's clothing, but personal searches involving bodily integrity (like taking blood samples or x-rays) would almost always require a warrant.Warrant needed for a building

Other than the human body, buildings or portions of buildings which the public usually don't have any access to tend to have the highest expectation of privacy. This is particularly so with residences. Even if the police are already in a building for another legitimate purpose, they can't just go poking around looking for evidence - they need to get a warrant. In extreme situations, they should be "freezing" the scene and getting a warrant, rather than later claiming exigent circumstances didn't permit obtaining a warrant. So arguing that a warrant was needed to search wherever drugs or related evidence was located remains a key part of any strong drug charge defence. You should consult a lawyer with experience in search warrants to obtain advice about whether such a defence could work for you.